The Supreme Court has recently granted the Plaintiff’s appeal in the Gloucester County case of
Covens v. Food Lion, LLC. In this case, the Plaintiff allegedly incurred permanent injury and the need for $1.33 million in future medical care as a result of being struck by a pallet of merchandise being pushed by a store employee. At trial, the store’s attorney used photographs from the store’s security system to attempt to show that the Plaintiff should have seen the pallet coming and should have moved out of the way. The issues on appeal are whether a contributory negligence instruction was appropriate, and whether the proper evidentiary foundation was presented to admit the photographs in evidence.
Covens v. Food Lion, LLC. In this case, the Plaintiff allegedly incurred permanent injury and the need for $1.33 million in future medical care as a result of being struck by a pallet of merchandise being pushed by a store employee. At trial, the store’s attorney used photographs from the store’s security system to attempt to show that the Plaintiff should have seen the pallet coming and should have moved out of the way. The issues on appeal are whether a contributory negligence instruction was appropriate, and whether the proper evidentiary foundation was presented to admit the photographs in evidence.
The Supreme Court has also recently granted the Plaintiff’s appeal in the Chesterfield County case of
Luhlin v. Saman. In this case, the defense attorney used the transcript of the Plaintiff’s recorded statement to refresh the Plaintiff’s recollection about his rotator cuff surgery three years before the subject accident. The Plaintiff contended that the use of the recorded statement violated Virginia Code §8.01-404, which provides in pertinent part:
Luhlin v. Saman. In this case, the defense attorney used the transcript of the Plaintiff’s recorded statement to refresh the Plaintiff’s recollection about his rotator cuff surgery three years before the subject accident. The Plaintiff contended that the use of the recorded statement violated Virginia Code §8.01-404, which provides in pertinent part:
. . . that in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness and no extrajudicial recording made at any time other than simultaneously with the wrongful act or negligence at issue of the voice of such witness, or reproduction or transcript thereof, as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case. Nothing in this section shall be construed to prohibit the use of any such ex parte affidavit or statement in an action on an insurance policy based upon a judgment recovered in a personal injury or death by wrongful act case.
The issue on appeal is whether the use of the recorded statement merely “to refresh recollection” is prohibited by Virginia Code §8.01-404.
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